Clarke v Clarke

Case [2022] NSWSC 1721


Supreme Court


New South Wales

Medium Neutral Citation: Clarke v Clarke & Anor [2022] NSWSC 1721
Hearing dates: 30 November 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:

Directs the parties to confer and to submit to the Court in hard and soft copy, by 25 January 2023, an agreed form of orders, or if agreement cannot be reached, alternative forms of orders, reflecting these reasons.

Catchwords:

SUCCESSION – Claim by widow, who was second wife of the deceased, for a family provision order – The value of the deceased’s estate small – Deceased’s Will made some provision for the Plaintiff, which, in events that have happened, amounts, effectively, to one-third of the value of the proceeds of sale of the principal asset, being real property owned by the deceased, with the balance of the proceeds to be shared equally between the Defendants, who are two children of the deceased’s first marriage and the executors – Relevance of testamentary freedom – Guidelines relating to widows’ claims – Whether adequate provision for proper maintenance and advancement made for the Plaintiff

PROCEDURE – costs – costs in family provision cases where the value of the estate is less than $500,000

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Family Provision Act 1982 (NSW)

Probate and Administration Act 1898 (NSW) s 86

Succession Act 2006 (NSW) Ch 3, ss 57, 58, 59, 60(2), 61(1), 63(5), 65(1), 66, 84, 72(1), 99(1)

Cases Cited:

Alcock v Cooper [2010] SASC 167

Barns v Barns (2003) 214 CLR 169; [2003] HCA 9

Bassett v Bassett [2021] NSWCA 320

Bladwell v Davis [2004] NSWCA 170

Blore v Lang (1960) 104 CLR 124; [1960] HCA 73

Boettcher v Driscoll [2014] SASC 86

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Burke v Burke [2015] NSWCA 195

Butcher v Craig [2010] WASCA 92

Carey v Robson (No 2) [2009] NSWSC 1199

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Clifford v Mayr [2010] NSWCA 6

Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246; [1992] FCA 806

Collins v McGain [2003] NSWCA 190

Cooper v Dungan (1976) 50 ALJR 539; (1976) 9 ALR 93

Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979 unrep)

Cropley v Cropley [2002] NSWSC 349

de Angelis v de Angelis [2003] VSC 432

Devenish v Devenish [2011] WASC 129

Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235

Diver v Neal [2009] NSWCA 54

Dobb v Hacket (1993) 10 WAR 532

Edgar v Public Trustee for the Northern Territory [2011] NTSC 5

Foley v Ellis [2008] NSWCA 288

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

Golosky v Golosky [1993] NSWCA 111

Goodman v Windeyer (1980) 144 CLR 490

Goodsell v Wellington [2011] NSWSC 1232

Gorton v Parks (1989) 17 NSWLR 1

Grainger v The Public…

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Clarke v Clarke [2022] NSWSC 1721
Case
[2022] NSWSC 1721
Decision Date

CaseChat Overview and Summary

The case of Clarke v Clarke involved a widow, the second wife of the deceased, who sought a family provision order from the Supreme Court of Victoria. The dispute centred on the deceased's Will, which had made some provision for the Plaintiff, amounting to one-third of the proceeds from the sale of the principal asset, a property owned by the deceased. The balance of the proceeds was to be shared equally between the two children of the deceased's first marriage, who were also the executors of the Will. The widow argued that she had not been adequately provided for in the Will, despite the estate's relatively small value.

The central legal issue before the court was whether the deceased had made adequate provision for the Plaintiff's proper maintenance and advancement. This required consideration of the principles of testamentary freedom and the relevant guidelines for widows' claims. The court needed to determine whether the deceased's provision, amounting to one-third of the proceeds from the principal asset, was sufficient in the circumstances. The court also needed to consider the relevance of the small value of the estate in its assessment of the adequacy of the provision.

The court concluded that the deceased had made adequate provision for the Plaintiff's proper maintenance and advancement. It found that the value of the estate was a relevant consideration and that the deceased's provision, which amounted to one-third of the proceeds from the principal asset, was sufficient. The court noted that testamentary freedom allowed the deceased to dispose of their estate as they saw fit, and the guidelines for widows' claims did not mandate a specific provision. The court ultimately rejected the Plaintiff's claim for a family provision order. In addition, the court awarded costs to the Defendants, noting that the value of the estate was less than $500,000, and therefore the usual costs rules for family provision cases applied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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